(dissenting).
The Supreme Court in Radiant Burners, Inc. v. Peoples Gas, Light & Coke Co., 364 U.S. 656, 660, 81 S.Ct. 365, 367, 5 L.Ed.2d 358 (1960), said in regard to the sufficiency of a claim under section 1 of the Sherman Act, “to state a claim * * * under that section, allegations adequate to show a violation and, in a private treble damage action, that plaintiff was damaged thereby are all the law requires.” To state a claim under section 2 of the Sherman Act should require no more. In my opinion, plaintiff has met this requirement.
The complaint alleges, as the district judge recognized, that the Illinois Bell Telephone Company, as publisher, and Reuben H. Donnelley Corporation, its advertising agent, occupy a monopolistic position in yellow page telephone directory advertising within the two geographical areas listed in the complaint, the Rockford, Illinois, area and the East Moline-Moline-Rock Island, Illinois, area. The complaint further alleges that yellow page advertising in the telephone directories of Bell is independent of its public utility position, and that the cost of such advertising is controlled by Bell and is not subject to regulation by any governmental body; that plaintiff was in the business of placing advertising in the yellow pages of the telephone directories in Illinois; that defendants are also in the business of placing advertising in the yellow pages of the telephone directories in Illinois; that defendants excluded plaintiff as a competitor by refusing to accept yellow page advertising from it, and that plaintiff was forced to discontinue its business because of the unlawful actions of defendants.
The complaint upon analysis indicates the following conclusional charges: Bell has a monopoly of yellow page advertising within each of the two geographical areas listed; Donnelley has an exclusive agency from Bell to solicit advertising for the latter’s telephone directory; Best, an independent advertising agency, attempted to solicit advertising to be placed in the yellow pages of Bell’s directory; Bell refused to deal with Best; it deals with advertisers only if they are solicited by Donnelley; Best and Donnelley were in *1013•competition in the solicitation and placing of advertising in Bell’s publication; "this competition was restrained by defendants’ conduct, resulting in Best’s annihilation.
As one who operated an alleged monopoly, Bell has no legal right to prefer a .single advertising agency to the exclusion of all others. Moreover, it had no right to prevent advertisers from purchasing space in the yellow pages through an .agency of their choice, so long as an appreciable amount of interstate commerce •was affected by such conduct. This is what I understand to be the effect and meaning of section 2 of the Sherman Act -and of cases interpreting that section. Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959); Lorain Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L. Ed. 162 (1951).
The majority says, “We hold that Donnelley’s refusal to deal with the plaintiff which was organized in an attempt ■to obtain business from Donnelley, did :not have any appreciable effect on interstate commerce, and the requisite injury •.to competition was not shown; therefore, such conduct was not prohibited by Section 2 of the Sherman Act.” I do not ■comprehend how the court can make such determination absent proof submitted either in a trial or on motion for summary judgment. Plaintiff alleged in its .complaint:
-“These telephone directories are ^printed out of the state of Illinois .and are shipped in substantial quantities into the state of Illinois and «distributed in substantial quantities in Interstate Commerce throughout the United States. Ads appear in the yellow page section of the Illinois telephone directories from other states and the directories are part of the complete telephone system in the United States whereby communication by telephone is made in Interstate Commerce.”
In my opinion this was a sufficient allegation of the substantiality of the interstate „ commerce. Lorain Journal Co. v. United States, supra; Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 73 S.Ct. 872, 97 L.Ed. 1277 (1953). Plaintiff should be allowed to submit proof rather than to be summarily cut off at the pleading stage.
In Radovich v. Nat’l Football League, 352 U.S. 455, 77 S.Ct. 390, 1 L.Ed.2d 456 (1957), a treble damage action charging a section 2 Sherman Act violation, the Court, speaking through Mr. Justice Clark, said, “Since the complaint was dismissed its allegations must be taken by us as true.” Moreover, the Court, after indicating that the allegation of the nature and extent of interstate commerce seemed sufficient, said, “We think that Radovich is entitled to an opportunity to prove his charges.” Similarly, I think Best is entitled to an opportunity to prove its charges.
I would reverse the judgment of dismissal.